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Latimer v. Kolender

August 28, 2009

DEREK FRANK LATIMER, PLAINTIFF,
v.
WILLIAM B. KOLENDER; COUNTY OF SAN DIEGO, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Adler

ORDER GRANTING IN PART AN D DENYING IN PART MOTION TO DISMISS

Defendants Beverly Orr, George Garcia, Earl Goldstein and Dennis Runyen move to dismiss Plaintiff's Fourth Amended Complaint ("FAC") pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff opposes the motion to dismiss. Pursuant to Local Rule 7.1(d)(1), this matter is appropriate for decision without oral argument. For the reasons set forth below, the motion to dismiss is granted in part and denied in part.

BACKGROUND

On November 9, 2005 Plaintiff commenced this civil rights action alleging that Defendants were deliberately indifferent to his serious medical needs during his incarceration at the George Bailey Detention Facility from August 2004 to January 2005. (FAC at p.9). Plaintiff's FAC is based upon the following allegations.

Plaintiff alleges that he suffers from server medical conditions consisting of deep vein thrombosis, complications of brawny edema, a stasis ulcer, and venous insufficiency. (FAC at p.5). His medical conditions allegedly cause swollen extremities and he is prone to blood clots. Id. Plaintiff takes several medications for his medical conditions. Id. He has suffered three previous pulmonary embolisms. Id.

Plaintiff was arrested on August 20, 2004 and transported to the San Diego County Jail. As a part of the booking process, Plaintiff was interviewed by a nurse, Defendant Beverly Orr. Plaintiff informed her that he suffered from deep vein thrombosis, a stasis ulcer, his swollen legs were tender and painful, he was having difficulty breathing and feeling lethargic. Id. at p.6. He also informed Defendant Orr that he had not been taking care of himself and that he had not taken his medications for several days. Id. Defendant Off then ordered Plaintiff placed in a holding cell. Plaintiff alleges that established protocol called for her to make sure that he was "immediately seen by medical staff," and that she deliberately ignored the protocols. Plaintiff alleges that the failure to obtain immediate medical attention resulted in permanent harm, including shortness of breath, painful swelling in his legs, an increase in the size of his stasis ulcer, loss of feeling in three toes, short-term memory loss, and emotional distress. Id. at p. 15.

After being moved to several different holding cells and after about 12 hours from the time of admission, he was sent to the Central Infirmary. Id. at p.7. While in the infirmary he was seen by a nurse and two doctors, he explained his medical conditions, and told them that he believed that he was having a pulmonary embolism. "During this time I was never given a medical exam including exrays (sic), ultra sound, and a CAT scan, all of which are standard procedures for treating someone with my condition." Id. He was then returned to a holding cell

After a period of time, he spoke with the Classification and Housing Sergeant and told him that he "needed immediate attention because [he] was on conscious (sic) for extended periods of time and was having difficulty breathing." Id. His request to be housed in the Infirmary was denied. Instead, Plaintiff was placed with the general population. Within a day or two he received further medical attention.

Defendant Dennis W. Runyen is the Assistant Head Sheriff. Plaintiff alleges that his duties include overseeing the daily operation of the jail. "Defendant Runyen is sued for violating my constitutional right to medical treatment, and for violating my right to be free from cruel and unusual punishment." Id. at p.9. During the time he was incarcerated, he alleges that the jail was overcrowded and that Defendant Runyen failed to provide adequate housing and medical care. He also alleges that Defendant Runyen "had direct involvement in the decision to override the policy of making sure that I get adequate treatment for a life endangering illness." Id. at p.10.

Defendant Goldstein is the alleged Chief Medical Officer over San Diego County Jails. Id. at p.12. Defendant Goldstein's duties allegedly include supervising, directing, and training of medical staff at the County jails. Defendant alleges that during his time in incarceration he was never provided with an x ray, cat scan, or ultrasound. "As a result of this negligence, I have suffered further permanent harm including shortness of breath, loss of short term memory, an enlarged stasis ulcer, pain, and blood swelling in my legs, loss of feeling in three of my left toes, and much emotional distress." Id. at p.14.

Defendant Garcia is a Classification sergeant employed by the Sheriff's Department. Plaintiff allegedly informed Defendant Garcia of his medical condition, his failure to take medication for several days prior to his arrest, and that he was experiencing periods of unconsciousness. In alleged violation of existing protocols, Defendant Garcia denied Plaintiff's request to be housed in the infirmary and informed Plaintiff to file a medical appeal. One day after filing a medial appeal he was transferred "to GBDF." Id. at p.18. "As a result of [Defendant Garcia's] negligence, [Plaintiff] has suffered permanent harm." Id.

Based upon the above generally described conduct, Plaintiff alleges that Defendants violated his right to adequate medical care and thereby subjected him to cruel and unusual punishment in violation of the Eighth Amendment.

DISCUSSION

Legal ...


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